Home / General / Next in the Attack on Public Sector Unionism

Next in the Attack on Public Sector Unionism


Moshe Marvit with the next round of attacks on public sector unionism from the people who brought you Harris v. Quinn. Basically, they are going after the entire idea of exclusive representation in all states. Given the current makeup of the Supreme Court, it seems unlikely that the principle will last, even though it is foundational to American labor law:

On the heels of its recent Supreme Court victory in Harris v. Quinn, the National Right to Work Committee and Legal Defense Foundation (NRTW) has initiated a bold new attack on unions.

In a recent fundraising appeal sent on August 10, the president of both organizations wrote that Harris “was just the beginning,” and that fair share provisions (or, as he called them, “forced dues”) were only “part of the problem.” Now, having succeeded in imposing a right-to-work model for home healthcare workers across the country, NRTW is gunning after a much greater and unexpected target: exclusive representation.

One of the bedrock principles of American labor law is exclusive representation, whereby a union represents all the workers in a bargaining unit after it shows majority support by the workers. In a new case filed on behalf of a few Minnesota home care workers, Bierman v. Dayton, NRTW is now arguing that a union elected by the majority of workers should not be permitted to represent anyone that does not choose to join.

Last week, I wrote about a new positive experiment in members-only unionism at Volkswagen, which does not follow the exclusive representation model. If it is successful, Bierman v. Dayton would transform all public-sector unions into forced members-only unions, opening the door to a radical reconfiguration of public labor organizations.

In Minnesota, 26,000 home health care workers are currently voting by mail-in ballot whether to elect SEIU as their union. Those ballots are due by August 25. In its first maneuver of Bierman v. Dayton, NRTW filed for a preliminary injunction to invalidate the state law that authorized these workers to vote for a union—in other words, an exclusive representative—to bargain with the state. Expedited oral arguments were held on Tuesday, and on Wednesday afternoon the federal judge denied NRTW’s request for an injunction.

This early loss was to be expected, as NRTW is mounting a novel legal argument that runs counter to decades of labor and constitutional law. And NRTW’s litigation strategy generally includes repeated early losses as its representatives work their way through the judicial circuits to the Supreme Court.

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  • CatoUticensis

    I have to say I think this is a significant misstep by the NRTWF, because it removes any sting the open shop has. You want to file a grievance? Got to be a member. Fuck, even want to talk to a steward? You have to join.

    I think they’d be better off going after dues check-off, to be honest.

    • urbanmeemaw

      How about negotiated wages or benefits? If the Union negotiates a wage increase or additional benefits, do non-Union employees benefit? I would think not. I agree that this could backfire.

      • NonyNony

        If you want to use it to break a union, the way you do it is to negotiate with the union and then give the minority of people who are NOT members in the union a better deal by negotiating with them separately. Word spreads that being in the union is a sucker’s bet, union members drop out, and then when the union representation is below the floor needed to keep the union around the union is dropped. At that point benefits can be cut back and raises throttled back.

        ETA: Also it works as a PR stunt for the company if the workers in the union strike because the non-union workers are getting a better deal. It makes the union workers look like the caricature of “employees who aren’t worth a damn, so they need to have a union to save their jobs” since “if they were any good the company would pay them their worth” is embedded in the national narrative of this country.

        There’s no way this works out for the union employees. That’s why the business interests involved here are fighting so hard to get it and why they want to get this case up to a sympathetic SCOTUS.

        • Linnaeus

          NonyNony has more or less described exactly how this will work out in practice. In addition, the linked article points out that public-sector entities may not want to have to deal with the multitude of bargaining agents that could emerge from the lack of exclusivity and states may end up ending collective bargaining in the public sector altogether.

          They’re really going for it all now.

        • Anna in PDX

          I think this is sort of how it already works at my place of employment.

        • pdxtyler

          I feel like you could write a decent me-too clause to prevent this. I kind of agree with Cato, I don’t really get what the rtw foundation is doing. Also you can’t trust this court, but they seemed to be really skeptical of banning exclusivity in the oral arguments for harris.

        • Brett

          That doesn’t seem like a sustainable strategy. You can raise the wages and benefits the non-union members get in order to dodge “union threat” (and many companies have done that for decades), but it’s harder to then immediately cut them back down once the threat has receded. The end result is usually an overall higher level of wages, at least for the existing set of employees (companies that don’t want to destroy morale among said employees tend to screw over new hires more, like what Delta did with new workers).

  • dl

    The Petition Clause?!

  • c u n d gulag

    “…the National Right to Work Committee and Legal Defense Foundation (NRTW)…”

    Are we sure that NRTW doesn’t stand for No Right To Wages?
    Or, Never Reward The Worker.

    • Matt

      “Right to work” is standard conservative shorthand for “right to work for terrible wages with no job security in unsafe conditions”.

      • Linnaeus

        But surely that’s freedom!

  • But Erik, why do you only write about labor issues when they affect academics?

  • Dr. Ronnie James, DO

    IANAL, but as far as home health workers go, couldn’t states counter this through their regulation of health professions? Say that membership in good standing of the respective union is a necessary condition of licensure? Maybe put the unions in charge of CME (if they’re not already)?

    I also wonder how the increasing consolidation of healthcare (which is only going to increase) will affect this: can a big hospital system get enough professional staff without collective bargaining? My understanding is that as much as they’d like to, they cannot: eg, there are companies that provide scab nurses during strikes but they can’t provide very much, so a temporary non-union workforce is not feasible long term in most places.

    • Joseph Slater

      One of the ironies of the Harris decision was that the workers there might well have been considered “employees” under the relevant labor statute had the state exercised more control over their work — as opposed to having the people they workers cared for have some control.

  • DrDick

    I just wonder how long before they bring back slavery and/or indentured servitude.

    • Linnaeus

      I’m thinking more along the lines of serfdom.

      • DrDick

        Good point. Much the same as the others, but with even fewer worker protections.

        • Brett

          Nah, they like being able to kick people out too much for that. More likely is that they corrode all kinds of legal protections so that your only choice when facing abuse is to walk off the job, and actually getting remedies in the civil courts is impossible because of extensive arbitration requirements.

    • liberal

      They already brought back indentured servitude. It’s called “the H-1B visa.”

  • DocAmazing

    Off-topic, somewhat:

    Busting taxi unions as an encore to getting Obama elected:


    • Brett

      You can still unionize Uber’s drivers, especially if they end up having to buy commercial drivers’ insurance (which seems like a probable legal requirement for this down the line). In fact, Uber and the taxi companies are often competing for the same group of drivers.

  • Lee Rudolph

    Here’s some entrepreneurial spirit in England: detained immigrants are hired to cook and clean their (privatized) detention centers at far below minimum wage. GOP take note!

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